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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Graham, Writer to the Signet v. Keeper, Depute-Keeper, and Commissioners of the Society of Writers to the Signet, and the Treasurer and Procurator-Fiscal of that Society [1825] UKHL 1_WS_538 (21 June 1825) URL: http://www.bailii.org/uk/cases/UKHL/1825/1_WS_538.html Cite as: [1825] UKHL 1_WS_538 |
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Page: 538↓
(1825) 1 W&S 538
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1825.
1 st Division.
No. 45.
Subject_Title to pursue — Corporation — Writers to the Signet. —
An action having been brought by the keeper and depute-keeper of the signet, and of the commissioners, treasurer, and procurator-fiscal of the corporation or society of clerks or writers to the signet, (but not setting forth that they pursued on behalf of the society), against a member of the body, to have it found that certain rules were legal and proper; that effect should be given to certain proceedings by them against that member for alleged infraction of the rules; and that they had power to suspend him from or deprive him of his office; and the Court of Session having sustained the title of the pursuers to sue, and decerned in terms of the libel;—the House of Lords reversed, and assoilzied the defender.
Originally the office of keeper of the signet was vested in the Secretary of State, but latterly the offices were in general kept separate. By the commission there is conferred on the keeper, “dictum locum munus et officium custodis dicti signeti cum omnibus feodis, proficuis, beneficiis, casualitatibus, libertatibus et immunitatibus, ad dictum locum et officium legitime spectan. et pertinen.;” but nothing is said as to a power to incorporate.
The writers to the signet were clerks in the office of the Secretary of State, and were prohibited from engaging in the business of “procuratoris, agentis, nor ordinarie servandis to the Lordis of Sessioun or men of law, or exerce ony othir particulare office in hurt and preiudice of the rest of the brethrene and general office. Bot that the sadis writeris, and ilk ane of yame, sal be friemen, keep oppin buithis, speciallie await and attend upon yair buithis and vocation, and naways be subject to ony uther particulare service or servitude of ony persones, under the pane of deprivation.” In the progress of time, however, they began to perform their business in their own private offices, and acquired the privilege of acting as agents before the Supreme Court, which had been previously confined to advocates' clerks. They are admitted by virtue of a commission granted by the keeper, who, in more ancient times, was in the practice of limiting the number. As clerks to the signet, they have the exclusive
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The keeper appoints a deputy-keeper, and a certain number of the body as commissioners; and the commission which is granted to the latter proceeds on the narrative, that “it belongs to me, as keeper of the said signet, to admit clerks to the signet, and to restrain and punish abuses, informalities, and disorders which may happen among clerks to the signet; for which end, it has been the. constant custom and practice of the principal keepers of his Majesty's signet to grant commission to a certain number of the clerks to the signet. Therefore, pursuant to this laudable custom, I, as principal keeper foresaid, do, by these presents, give full power and commission to,” (then follows the commissioners’ names), “with the deputy-keeper, to be commissioners for the clerks to the signet, or to any five of them, the said deputy-keeper being always one, to convene as often as they shall think fit, and to take order with all abuses, falsities, and informalities, in their vocation already committed, or which shall happen to be committed by any member thereof, masters or servants, and to punish the same according to the acts made by former keepers and commissioners to the signet, for the good of the calling; which I do hereby ratify and confirm.” The duties thus conferred are exercised by the commissioners alone. No charter of incorporation had ever, as far as could be discovered, been granted to the writers; and although by-laws were frequently made, yet they derived their authority from the keeper, acting under the advice of the commissioners. Accordingly, at an early period various regulations were made by him, both in relation to their private and public conduct. Thus, in 1656, he ordained “that no writers to the signet in time cuming tak up publick tavernes, or oppen inne-houses for selling of meat and drink, an that thes who alreadie keep such tavernes and innes discharge themselffs betwixt and Mertemes next, under the payne of deprivatione.” Again, on another occasion, he declared, that all “wryters to the signet takecare for the future that all wryts 4 be correctlie written, without blotting, razeing, or vitiatione.” Among other regulations which were established, was one dated 22d January 1666, by which they were prohibited “to acknowledge
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In 1800, the appellant John Graham was, after an examination, admitted a writer to the signet, by virtue of a commission granted by the late Lord Melville, keeper of the signet, and which proceeded on the narrative, that he had the “power and right to admit writers to the signet;” and therefore he nominated and presented “the said John Graham to the said office of writer to the signet.” Accordingly, Graham paid the usual dues, subscribed the above regulations, took the oath de fideli, and thenceforth acted in this capacity. In the month of February 1821 Mr Richard Mackenzie, procurator-fiscal for the society, presented a petition and complaint to the keeper and commissioners, in which, after founding on the above regulations, he set forth, “That John Graham, writer to the signet, has, within the last four months, been guilty of contravening the foregoing regulations; and in proof thereof the complainer now condescends and offers to prove the following facts:—1st, The said John Graham owns or acknowledges eleven different persons as his apprentices or clerks, while the fact is, that not one of them is. in very deed and truth, without fraud or collusion, his real
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The petition having been served upon Graham, he lodged answers, declining the jurisdiction of the keeper and commissioners to take cognizance of those charges; but upon advising the proceedings, the commissioners found the complaint relevant, and appointed Mr Mackenzie to state in a minute his mode of proof, and Graham to see and answer. A minute was accordingly lodged, in which a reference was made to Graham's oath, which was sustained, and he was appointed to appear and depone under certification. He declined to do so, both in respect of their want of jurisdiction, and of the illegality of the reference. The
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“The commissioners having considered the petition and complaint, with the whole procedure thereon, and the said John Graham having not only failed to appear, but also intimated his intention not to appear, hold him as confessed on the matters alleged against him, and fine and amerciate him in the sum of L. 5 sterling; and ordain him to pay the same to the treasurer of the society, for the use of the poor, within fourteen days from the date of intimation to him of this deliverance; and further certify him, in case of repetition of similar acts in breach of the regulations of the society, they will proceed to suspend him from, or deprive him of his office of writer to the signet, according as the justice of the case may require.”
This was followed by an action, the summons of which against Graham proceeded in the names “of the Right Honourable William Dundas, Lord Clerk Register of Scotland, and principal keeper of the Signet; Colin Mackenzie, deputy-keeper, Alexander Duncan, David Stewart, (and certain other persons, but not including all the members of the society), all clerks or writers to the signet, and commissioners for the society and corporation of clerks to the signet; Richard Hotchkis, treasurer, and Richard Mackenzie, writer to the signet, procurator-fiscal to the said society.” The summons then set forth, “that the society and corporation of clerks or writers to our signet are entitled to certain exclusive rights and privileges, and particularly to the exclusive right and privilege of signing all letters and writs which pass under our signet:” that the above regulations had been made: that a commission had been granted by the keeper to the deputy-keeper and commissioners, with power to make rules and regulations, to enforce the same, and do every thing competent for him to do: that they had exercised these powers on various occasions: that Graham had been admitted a member, and subscribed the regulations: that he had violated them, and the above proceedings had been adopted against him; and therefore they concluded, that it ought and should be found and declared, by decree of the Lords of our Council and Session, that the acts and regulations of the society and corporation of clerks or writers to our signet, specially founded on in the petition and complaint at the instance of the procurator-fiscal for the said society against the said John
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The case having come before Lord Alloway, his Lordship repelled the objection to the pursuers' title in the action, and found them, in this respect, entitled to all the privileges of an incorporation;” but ordained them to give inspection to Graham's counsel and agent of their records. Graham having lodged a representation on the question of title, and the merits having been argued in memorials, his Lordship reported the whole cause on informations.
*
This question has already been decided in the case which occurred before with the solicitors, where it was found that they were a corporation, and entitled to the privileges of a corporation; and I should be very sorry, indeed, if there was any difficulty now in the case.
_________________ Footnote _________________ * These are the opinions which were laid before the House of Lords.
Page: 546↓
My only doubt is as to the conclusion in the summons, which declares that it shall be in their power to dismiss any of their members. But a member of the society of writers to the signet is a member of the College of Justice, a great corporation, composed of several smaller corporations. Now my difficulty is, whether it be competent for one of these lesser bodies to dismiss one of their number, so as to exclude him from being a member of the larger corporation. It is there the only doubt I have in the case lies.
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With regard to holding him as confessed, why he has subscribed to that regulation too; and, even if he had not, I am quite clear that every thing that goes merely to a fine, or even dismissal from office, may be referred to a party's oath. This is the case, your Lordships know, with poachers, whose oath is held sufficient without farther evidence. This man has subscribed and agreed to the rules; these rules are sanctioned by the keeper; and therefore I think he is bound by them. It is said that the keeper may not be a writer to the signet: but what of that? The speaker of the House of Lords may not be a Peer; a commoner may be speaker in the House of Lords; but it will be the House of Lords for all that. On the whole, I see no reason for entertaining any doubt whatever on this case.
The Court accordingly, on the 13th February 1823, “repelled the defences stated for the defender, and decerned and declared
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Graham then appealed.
Appellant.—1. In considering the question of title, it is necessary to keep in view, that the action is brought by the respondents in their capacity of clerks or writers to the signet. As agents and conveyancers they do not possess any exclusive privileges; and it is not pretended that in either of these capacities they form a corporation. It is admitted, that they have no incorporating charter: but it is said, that they have enjoyed corporate privileges for time immemorial, and therefore the existence of a charter at one time in their favour must be presumed: that, accordingly, they have been in the practice of, making by-laws, and have been recognized both by the Courts of law and by institutional writers as a corporation. There is, however, no foundation for such a plea. It may be true, that in relation to burghs royal, and corporations connected with them, a presumption in law arises, from the exercise of corporate privileges for a long period of time, that a charter or seal of cause at one time existed; because it is well known that burghs derived their privileges directly from the Crown, and that the minor corporations obtained a communication of privileges from the burgh. But no such presumption can exist with regard to such a body as the writers to the signet. Besides, they have never possessed any of the distinctive qualities of a corporation. As a body, they have no means of perpetuating their own existence; they are entirely dependent on the keeper. He may restrict their number at pleasure,—a power which was frequently exercised by him. He has even admitted persons, who had not served an apprenticeship, as writers to the signet. Neither is it true, that as a body they have the power of making by-laws. These derive their authority from the keeper alone; and although this is exercised through the intervention of commissioners, yet it is from him that these rules derive their authority. Neither have they any peculiar privileges as a body. It is true that the signet is only affixed to writs subscribed by each of them individually; but that is done in respect of their being the clerks of the keeper, and as such authorized to prepare the writs. Neither have they any peculiar privileges as members of the College of Justice. They are, no doubt, agents
_________________ Footnote _________________
2 Shaw and Dunlop, No. 192.
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2. The regulations attempted to be enforced are most illegal. It may be perfectly lawful to prohibit larger fees to be taken than certain specific sums; but it is most unjust towards the public to enact that nothing less may be taken.
3. The proceedings against the appellant were unlawful. He was called upon to make oath to the verity of certain charges relative to the breach of rules, which it was said he had sworn not to do,—a proceeding incompetent even in a Court of law, and still more so by a self-constituted body. They were also most irregular; because it appears from the record that the sentence was not properly signed, and that the prosecutor acted as one of the judges.
4. The conclusions of the summons, as to the power of suspension and deprivation, are incompetent. The appellant holds a commission for life as a writer to the signet, for which he paid the usual fees, and therefore gave an onerous consideration. Besides, the conclusion does not bear relation to what has been done, but as to what ‘shall’ be done; thus leaving it to the discretion of the respondents to fix the grounds on which the appellant may be deprived of his commission.
Respondents.—1. The respondents have a clear title to pursue the present action. The society of writers or clerks to the signet are a corporation. They are specially mentioned as such by the first legal authorities, and as constituting an inferior corporation included in the greater one of the College of Justice; and they have enjoyed all the rights and privileges of one for centuries past.—They have also been recognized as such by the decision of the Court of Session in the question with the solicitors, where their corporate powers and privileges were expressly sustained, and their nature and extent precisely defined. Admitting that the appellant was well founded in his views of the society,—that they are merely a number of individuals appointed by the keeper of the signet to execute a part of his duty, and deriving their
Page: 550↓
2. The particular regulations on which the complaint against the appellant was founded, have been from time immemorial the law of the society, and have been repeatedly approved of and sanctioned by the keeper, the commissioners, and the society at large. They were consented to and subscribed by the appellant himself at the time of his admission, and constituted the condition of his appointment. They are, in themselves, in no respect contrary to or inconsistent with justice or general law; and they are highly useful, nay, requisite and indispensable, to secure the exclusive privileges of the society from being clandestinely and illegally communicated to other practitioners, not members.
3. The proceedings before the commissioners, on the complaint against the appellant, were strictly regular and formal, being conducted in terms of the regulations, which constitute the law of the corporation, and the condition of his admission as a member. The reference made to his oath, for the purpose of proving the charge, is quite consistent with the general law of Scotland, which, in all civil questions, admits of this species of evidence. It is attended with no hardship or injustice in itself; and in the particular circumstances of the society it is the more necessary, that the offences to which it is applicable can scarcely, in any case, be substantiated by other evidence. The other objections stated by the appellant are too frivolous to deserve notice.
4. There is nothing incompetent or improper in the conclusion of the summons, as to the power of suspension and deprivation. It is one merely declaratory of the power, which leaves open to question, both the legality of any regulation which may be assigned as the ground of any future exercise of the power, and the justice of the application of that rule to the particular case itself. The power is clearly inherent in every corporation; and were it possible to
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The House of Lords “ordered and adjudged, that the interlocutors complained of be reversed, and that the defender be assoilzied.”
The summons states, “that the society and corporation of clerks or writers to our signet are entitled to certain exclusive rights and privileges, and particularly to the exclusive right and privilege of signing all letters, or writs, which pass under our signet: That with a view of preserving those exclusive privileges, which, from their nature, might easily be infringed to a great extent by any one member of the society, it was found necessary by the society, at a very early period, to establish various rules and regulations to be observed by the members.” Then the summons states a minute of the society, passed so long ago as the 22d of January 1766:—it then sets out what are the present acts and regulations, some of them in force, regulating the conduct of clerks or writers to the signet; and one is, “that no clerk to the signet shall own or acknowledge any person as his apprentice or clerk, but such only as in very deed and truth, without fraud and collusion, is his real actual apprentice or his clerk, and actually attending and writing in his chamber;”—and then, “that no clerk to the signet shall subscribe any bills, summonses, letters, signatures, precepts, services before the macers, or other writs peculiar to the clerks to the signet, but such as are drawn or written by themselves, or their actual apprentices or clerks by their directions, except when they sign for an absent brother, as before directed, and except bills of advocation and suspension, and all ordinary summonses, which do not pass upon bills; and that every clerk to the signet shall take the full fees by law established, and no less;”—and then, that in case any clerk to the signet shall transgress or contravene any of the preceding regulations in this chapter, he shall, for the first offence, pay L.5 sterling to the treasurer of the society, for the use of the poor, and for every subsequent offence shall be suspended from his office.'
The summons then states, that the principal keeper of the signet has granted a commission, according to the ancient custom, to a certain
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It appears, my Lords, as I have stated, that this complaint came on before the Commissioners; that Mr Graham was required to take the oath to purge himself; that he declined to do so; that in consequence the commissioners, having considered the petition and complaint, with the whole procedure thereon, and the appellant having not only failed to appear, but also intimated his intention not to appear, held him as confessed on the matters alleged against him, and fined him in L. 5 sterling, and ordained him to pay the same to the treasurer of the society, to the use of the poor. Then, my Lords, they state, that he refused to pay the L.5, and also contemned the authority of the keepers and commissioners; and maintained, that he was entitled to act in direct opposition to the rules and regulations of the society, and in defiance of the powers vested in the respondents to punish in such cases, by fine or otherwise, as the justice of each case might require; and these are the conclusions, “that it ought and should be found and declared, by decree of the Lords of our Council and Session, that the acts and regulations of the society and corporation of clerks or writers to our signet, specially founded on in the petition and complaint at the instance of the procurator-fiscal for the society against the said John Graham, and herein before recited, are legal and proper, and that he,
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My Lords,—In consequence of this summons, defences were lodged by Mr Graham, in which he contended, that the pursuers had no title to maintain the action; that they had never been erected into an incorporation by letters patent from the Crown, or by statute; that they had no judicial powers or authority; that the attempt which they had made to exercise such powers was a gross and palpable usurpation of jurisdiction; that the proceedings, such as they were, had been totally informal, being incompetently brought, and most irregularly conducted; that they had made various attempts of a nature similar to the present, but that their efforts had been uniformly defeated; and that, with respect to the fees, certain fees are allowed by law to be taken as a maximum for their professional labour; but that the pursuers had no right to convert the maximum into a minimum, and to insist that no writer should make a lower charge than the highest sum which it was lawful for him to exact; and that there was no offence in his taking less fees than were allowed by law.
My Lords,—When this case came on, an interlocutor was pronounced by the Lord Ordinary, on the 7th of December 1821, in the following terms:—
“Having heard parties' procurators upon the grounds of the libel and defences, appoints the parties to state the case in mutual memorials.”
Afterwards another interlocutor was pronounced, on the 12th of December 1821, in these terms:—
“Having heard the counsel for the parties, appoints the pursuers to exhibit their books and records.”
Against these interlocutors the pursuers represented. They were anxious to have a finding engrossed in the interlocutor, that their title to pursue was sufficient; and to this effect they begged the Lord Ordinary to find and declare accordingly. Upon advising that representation, with answers, the following judgment was pronounced on the 22d of December 1821:—
“The Lord Ordinary, having considered the representation, and the answers thereto, together
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with the whole process, repels the objection stated to the pursuers' title in this action, and finds them, in this respect, entitled to all the privileges of an incorporation: finds, that the defender's counsel and agent are entitled to inspection in the books or records of the pursuers, not only of all the minutes founded on by the pursuers, of which extracts are produced, and of all proceedings relative thereto, but also to inspection of these records as to all the particular acts and regulations of the society.”
Your Lordships perceive, as far as the merits of the case were concerned, the Lord Ordinary repelled the objection stated to the pursuers' title, and found them, in this respect, entitled to all the privileges of a corporation.
My Lords,—The case was afterwards brought again before the Lord Ordinary, in June 1822, and then he pronounced this interlocutor:—
“Having considered the memorials for the parties, and the whole process, makes avizandum with the cause to the Court; and appoints the parties to prepare, print, and box informations quam primum, that the same may be reported.”
The case came before the First Division of the Court of Session on the 13th of February 1823, when this judgment was pronounced:—
“The Lords having advised the mutual informations for the parties in this cause, they repel the defences stated for the defender, and decern and declare, in terms of the conclusions of the libel, against him.”
So that your Lordships perceive, by this interlocutor, that the Court of Session did pronounce a judgment on all the conclusions of the libel against the defender.
My Lords,—One question in this cause, which has been agitated at your Lordships’ Bar, was, Whether these clerks or writers to the signet were, or were not, a corporation?—for your Lordships perceive the foundation on which the allegation of this summons sets out is, that this “society and corporation of clerks or writers to the signet are entitled to certain exclusive rights and privileges, and particularly to the exclusive right and privilege of signing all letters or writs which pass under our signet.” Now, my Lords, that was one question in the Court below; but then another question was raised,—Whether, assuming that they were a corporation, this action was properly brought, not in the name of the corporation, but in the name of Mr Dundas, who was the Lord Clerk Register of Scotland, and keeper of the signet, and some of the writers and clerks to the signet who had been appointed commissioners for the society
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Your Lordships perceive, that the object of this action was twofold: first, to have it declared that all their acts and regulations under which they proceeded against Mr Graham were good, not only against him, but against all the other members of the body; and afterwards what may be called the penal conclusion, to have the penalty of L. 5 paid to Mr Hotchkis, for behoof of the poor, according to the sentence which had been pronounced on the petition of complaint against Mr Graham. My Lords, if this body of writers to the signet are a corporation, I apprehend this action ought to have been brought by them as a corporation, to have their acts declared valid against any individual member. It was also necessary that it should be brought by them as a corporation, if they sought to enforce the payment of the L. 5. Now, my Lords, it is not brought by them as a corporation, but only brought by a certain portion of their body,—by the keeper, (supposing him a member of the corporation), and by the commissioners for the society and corporation of clerks; and not brought by them, as we have seen it sometimes done in an action in the Courts of Scotland, on behalf of themselves, and all other members of the body, but it is brought by them individually, as keeper of the signet, and as commissioners and procurator-fiscal and treasurer.
My Lords,—It has been said, that not only is this body a corporation, but that that question has been set at rest by the decisions: that it was a body as long as history could go back, acting and making regulations for themselves, called by-laws, as a corporate body: that they have been recognized as a corporate body: that they have sued and been sued as a corporate body; and that, therefore, it was now too late to question their being a corporation. And, my Lords, great reliance has been placed upon the passages which occur in one or two of the institutional writers, and particularly on one or two decisions which have taken place, in which this very respectable body of writers to the signet were parties. Now, my Lords, with respect to the institutional writers, Lord Bankton and Mr Erskine were cited; but I cannot find in either of their works the proposition stated on the part of the respondents, that they are a corporation. My Lords, it is very true, that in a marginal note to the passage I will read to your Lordships it is said, that the writers or clerks to the signet are a branch of the College of Justice, and a corporation. As I had read it in the papers, I certainly did read it supposing Lord Bankton had expressly so laid it down in the text; but when one comes to look to the text, to which this is the marginal note, he states no such thing. After stating how clerks to the signet are admitted,—and your Lordships know they are admitted by presentation from the secretary or lord-keeper of the signet, upon a trial of their sufficiency before certain of the
Page: 556↓
“Writers or clerks to the signet are a considerable branch of the College of Justice, and compose an honourable body under one of the Secretaries of State, or the Lord-Keeper of the Royal Signet for Scotland, when there is such distinct office, which is the case at present; and they are properly clerks in the secretary's office. The deputy-keeper of the signet, in the right of the secretary, or of the principal keeper, presides in all their meetings, and, together with the commissioners of the signet appointed by the secretary or principal keeper, is intrusted with the administration of the affairs of the society, the trial and punishment of delinquent members, the management of the common stock, and the examination and admission of intrants. The clerks to the signet long since have not had any concern in officiating as clerks of Session, who have been long under the foresaid regulation; but they still write the above bills, which are presented to the Ordinary by the clerk to the bills. Besides their peculiar province in relation to signatures and expediting letters under the King's signet, exclusive of all others, they practise in writing securities and conveyances,' which is a considerable part of their business; but others, likewise skilful in those matters, do it; for there are a great many other writers who profess that employment, though they are not writers to the signet; and those also conduct processes or actions before the Court of Session, and without them law affairs could not be carried on to any purpose. The clerks to the signet were of ancient standing; for they are mentioned as an established society at the institution of the College of Justice, and reference is made to their fees as settled in James the Fourth's reign.”
Now, my Lords, with respect to their being referred to as a corporation, Lord Bankton refers to the statute of 1537, cap. 59. My Lords, that statute does not appear to me to bear out that they are mentioned as a corporation; “ Item, That all clerks to the signet be sworn to exercise their offices lawfully and diligently; that none of them reveal nor make manifest to any man what they write or does for another, but shall keep all close and secret,” and so on. This is confirmed by two or three other statutes, cap. 60. and one or two others, in neither of which can it be contended that they are mentioned as a corporation; on the contrary, they are mentioned as persons whose individual conduct is to be regulated by statute.
I would refer your Lordships to the manner in which Mr Erskine, in his Institutes, treated this particular body. He says, in treating of corporations, (and this is the passage which has been cited), “A corporation, styled by the Romans, Collegium or Universitas, is composed of a number of men, united or erected by proper authority into a body politic, to endure in continual succession, with certain rights and capacities of purchasing, suing,” &c. Then he goes on—Cities, boroughs, hospitals, &c. may be thus incorporated; and we have frequent instances of lesser corporations within greater: thus, in
Page: 557↓
But then they say, they are still more fortified by recent decisions; and particularly a case before your Lordships' House, of the Society of Clerks to the Signet, and the Solicitors of the Supreme Courts of Scotland, in which the judgment was affirmed by your Lordships in the year 1803. Now, I beg to call your Lordships' attention to that case. Your Lordships will find they are sued in a corporate name, and sued there as “the keeper, commissioners, and whole society of clerks to the signet;” that was the way in which they sued there. The question in that case was, Whether those writers to the signet, or clerks, as they there called themselves, to the signet, were entitled to increase their legal fees; and the finding of the Court of Session is certainly singular. The interlocutor begins with this finding:
“Find the respondents, keeper, commissioners, and clerks to the signet, though entitled to all the privileges of a corporation, have no power, by their own authority, to increase their legal or established fees; and therefore prohibit and discharge,”
and so on. Then that interlocutor was afterwards amended by another:
“Having advised the mutual petitions for the keepers, commissioners, and clerks to the signet, and the society of solicitors of the Courts of Session and Commission of Teinds, and High Court of Justiciary in Scotland, with the answers to these petitions, find”
so and so. The decision there was adverse to the writers to the signet; they brought these interlocutors by appeal before the House of Lords, and those interlocutors pronounced against them below were affirmed: but I do not see that the question there was ever raised whether they were a corporation; all that the interlocutor there found was—to be sure it is a singular finding—not that they were a corporation, but that they were entitled to all the privileges of a corporation; and that is referred to by the Lord Ordinary in the interlocutor to which I have called your Lordships' attention. He found them entitled to all the privileges of a corporation, but without saying they were a corporation. Why, my Lords, they have sued since in their own capacity, but by a very different title from that which they do in the case to which I have referred your Lordships.
The next case occurred in the year 1814, when they failed again; and there was no question there as to their being a corporation; and there they sued in this title, “The keeper, deputy-keeper, and society of ‘writers to his Majesty's signet.’ Now, if they are a corporation, it is a little singular they should have varied so in the manner in which they sued; for it appears to me, from the research I have been able to make, and what has been stated at your Lordships' Bar, that the law in
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In the next place, as to this penalty of L.5, the commissioners were not particularly entitled to it; the keeper of the signet was not entitled to it; Mr Hotchkis was not particularly entitled to it, for it was to be paid to him for the benefit of the poor; the procurator-fiscal was not entitled to it. It was argued, and probably rightly, that he was added that your Lordships might pronounce some judgment, but that still the other members might have the benefit of the interlocutor which has been pronounced.
But, my Lords, it does appear to me, they are either a corporation, or they are not. If they are a corporation, they have not sued in their corporate character, and therefore those individuals, who are only a portion of the members of that body, have no right to come into Court to have it declared, that the acts and regulations made for the benefit of the whole body are to be binding upon the whole body, but the corporation itself ought to do so. With respect to the fine of L.5, the corporation ought to sue for it. The corporation is not itself entitled to the fine, because it was to be paid to the poor, but it is the corporation who must recover it at the hands of the party guilty of the charge imputed to him. Therefore I must confess, though I feel great hesitation when opposed to the very able persons who have expressed a different opinion—but when I appear at your Lordships' table, I am bound to give to your Lordships the best advice I can—I feel, I say, a great hesitation in asking your Lordships to undo that which has been done by the Court below; but it does not appear to me that the
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My Lords,—I have thought it right to intimate to your Lordships what opinion I have formed. If I were called upon to determine the question, whether they are a corporation or not, without materials upon which it could be more clearly shewn whether they were a corporation, it would be improper to propose a decision upon that; but it appears to me, that, even if they are a corporation, they are wrong in their mode of proceeding.
There is another question, Whether, supposing them a corporation, supposing they have the power of making by-laws, they can sustain the by-law they have made in this case, in which they enacted, that the party accused of an offence should be bound to purge himself upon his oath of verity, and that, if he refused so to do, he was to be holden confessed, calling upon the party charged with a probable neglect of duty to purge himself, or to confess his offence? It might be a very serious question upon that by-law, whether or not it was a legal by-law; because they have no right to make any by-law binding upon their members, not consistent with the general law of the country. Another question was, Whether the by-law was not illegal in enacting, that the party should not take less than certain prescribed fees by Act of Parliament of 50th Geo. III. which passed in the Parliament of this country? It was enacted by the by-law, that certain fees should be taken by the writers to the signet, and no less; but, my Lords, considering this an action brought by these individuals, not as representing the whole corporation, because they do not affect to do so in their summons,—not suing for the whole corporation, which, as I have said, is sometimes the case in the Courts of Scotland, that the party has sometimes sued for himself and all the others,—it appears to me impossible that these interlocutors can be supported upon this summons. If they are a corporation, they should have sued qua corporation: they have not done so, and therefore, whether a corporation or not, it appears to me these interlocutors cannot be supported.
I should notice another argument which was raised, that, if they are not a corporation, Mr Graham, who signed these, had personally bound himself to these articles; and therefore they might, though not a corporation, enforce against him the performance of the contract which
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Appellant's Authorities.—(1). 1. Blackstone, 467.; Masons of Lanark, June 11. 1730, (14,554.); Crawford, June 13. 1761, (14,555.);
P. F. of Aberdeen, Feb. 15. 1762, (19,061.); 1. Ersk. 2. 49.; 1. Ersk. 7. 64.; 1. Hist. of Charles V. 38.; Miller, 381.; 3. Hallam, 33.; 1. Hallam, 303.; 2. Turner's Hist. 102.; Madox, 26.; 1. Kidd, 44.; Skirving, Jan. 19. 1803, (19,021.); Maitland, 291.; Skene, voce Guild; Dr Jamieson, voce Guild; 1. Craig, 1663.; 1. Bank. 249.; 1. Ersk. 7. 64.; 1. Blackstone, 474.—.(3.) Hogg, Dec. 1681, (13,106.); Duff, Feb. 1799, (9576.); 1. Ersk. 7. 64.; 2. Kidd, 112.; Tomlin, voce By-laws.
Respondents' Authorities.—(1.) 1. Bank. p. 49.; 2. Bank. 495.; 1. Ersk. 7. 64.; Feuars of Kelso, Jan. 8. 1755, (1380.); Tailors of Perth, Dec. 10. 1756, (1974.); P. F. of Paisley, Feb. 17. 1761, (1956.); Lawson, Aug. 5. 1768, (1965.); Tailors of Potterow, Jan. 26. 1776, (7709.); Solicitors against Writers to the Signet, Feb. 25. 1800, (No. 1. App. Coll. of Jus.); Writers to the Signet, June 21. 1814, (F. C.)
Solicitors: Spottiswoode and Robertson— J. Chalmer,—Solicitors.